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Campbell v. Consolidated Rail Corp.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


January 6, 2009

HAROLD E. CAMPBELL, JR., PLAINTIFF,
v.
CONSOLIDATED RAIL CORP.; AND CSX TRANSPORTATION, INC., DEFENDANTS.

The opinion of the court was delivered by: Glenn T. Suddaby, United States District Judge

DECISION and ORDER

I. INTRODUCTION

Plaintiff commenced this action on December 28, 2004, pursuant to the Federal Employer's Liability Act ("FELA"), 45 U.S.C. § 51, et seq. (See Dkt. No. 1, ¶ 4 [Plf.'s Compl.].) Plaintiff was employed by Defendant railroad companies from September 1976 to June 2005. Plaintiff alleges that while working within the scope of his employment as a welder/foreman, he was exposed to "excessive and harmful cumulative trauma to his hands." (See Dkt. No. 24, ¶ 8 [Plf.'s Am. Compl.].) Plaintiff alleges that these "injuries were caused in whole or in part by the negligence, carelessness and recklessness of the Defendants and their agents, servants, workmen and/or employees, acting within the scope of their employment." (Id. at ¶ 12.)

At the Final Pretrial Conference in this action on December 29, 2008, and in a written Order filed on December 30, 2008, the Court decided, or partially decided, several of the motions in limine pending before the Court. (Dkt. No. 98.) This Decision and Order decides three of the motions in limine that remain in this action, each of which was filed by Defendants.

The first of these three motions in limine requests that the Court issue an Order that precludes Plaintiff from introducing at trial any evidence regarding the Occupational Safety and Health Act ("OSHA") standards or alleged violations of OSHA standards. (Dkt. No. 71.) The second of these three motions in limine (called Defendants' "Omnibus Motion in Limine") requests, inter alia, that the Court issue an Order that precludes Plaintiff from introducing at trial any discussion, argument, testimony and/or evidence regarding (a) any purported Congressional intent behind the enactment of FELA, (b) a comparison between FELA and any workers' compensation acts, the fact that Plaintiff was not covered under workers' compensation benefits, or that Plaintiff's sole remedy is under FELA, (c) any other claims or lawsuits against Defendants, or (d) whether Defendants could have employed a safer method of maintaining Plaintiff's workplace. (Dkt. No. 73, Part 2, at 1-4, 10-13.) The third of these three motions in limine requests that the Court issues an Order that precludes Plaintiff from introducing evidence that Defendants lacked an ergonomic program and/or medical surveillance program. (Dkt. No. 75.)

For the reasons set out below, the Court grants in part, and denies in part, these three motions in limine.

II. DISCUSSION

A. Defendants' Motion to Exclude Evidence Regarding OSHA Standards or Alleged Violations of OSHA Standards

In support of their first motion, Defendants advance a two-pronged argument: (1) any discussion of OSHA regulations should be precluded as irrelevant under Fed. R. Evid. 401, because the Federal Railroad Administration ("FRA") guidelines preempt OSHA regulations; and (2) even if the Court finds that the FRA guidelines do not preempt OSHA regulations, evidence of OSHA regulations is inadmissible under Fed. R. Evid. 403, because the probative value of that evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury. (Dkt. No. 71.)

1. Relevance

Under the Federal Rules of Evidence, "'[r]elevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401. With respect to Defendants' argument that OSHA is irrelevant (in this FELA action) because the FRA guidelines preempt OSHA regulations, Defendants are certainly correct that FRA guidelines preempt some OSHA regulations.

Specifically, in 1970, Congress enacted the Federal Railroad Safety Act ("FRSA") in order to "promote safety in every area of railroad operations and reduce railroad-related accidents and incidents." 49 U.S.C. § 20101, et seq. The FRSA empowers the United States Transportation Secretary, acting through the FRA, to carry out the purpose of the FRSA by (1) "prescrib[ing] regulations and issu[ing] orders for every area of railroad safety," 49 U.S.C. § 20103(a), and (2) "carry[ing] out, as necessary, research, development, testing, evaluation, and training for every area of railroad safety," 49 U.S.C. § 20108(a). Indeed, OSHA recognizes that some of its regulations might be preempted by standards or regulations established by other federal agencies. See 29 U.S.C. § 653(b)(1) ("Nothing in this [Act] shall apply to working conditions of employees with respect to which other Federal agencies . . . exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.").

Having said that, the Court hastens to add that FRA guidelines preempt only some OSHA regulations. The FRA has stated that it will assume exclusive authority for making regulations only in areas involving its special competence over "the safety of railroad operations," which it defines as "conditions and procedures necessary to achieve the safe movement of equipment over the rails." 43 Fed. Reg. 10,585 (March 14, 1978).*fn1 For example, the FRA has stated that such conditions and procedures include ensuring that workers "laying or repairing welded rail observe certain procedures impacting on the final condition of the track," and that "proper precautions [are taken] to assure that trackmen are not struck by trains." Id. However, the FRA has expressly stated that "most hazards related to the handling of welding apparatus are non-operational concerns," and thus remain subject to OSHA regulations. Id; see also Ass'n of Am. R.R. v. Dept. of Transp., 38 F.3d 582, 588 (D.C. Cir. 1994). It bears noting that the Court is unaware of any instance in which the FRA has ever implemented a relevant regulation specifically governing welders. See 29 C.F.R. § 1910.252. As a result, the Court concludes that the FRA has not preempted OSHA with regard to the use of welding equipment.

That conclusion does not end the Court's inquiry into whether OSHA is relevant to this FELA action because that relevance must be specifically identified. Based on a careful review of the applicable case law, it appears that, generally, where federal courts have found that the FRA has not preempted OSHA, those courts have found OSHA regulations to be admissible as some evidence of the standard of care in FELA cases. See, e.g., Robertson v. Burlington N. R.R., 32 F.3d 408, 409-11 (9th Cir. 1994) (affirming district court ruling that admitted OHSA's noise standards as some evidence of the defendant's duty of care) [citations omitted]; Ries v. National R.R. Passenger Corp., 960 F.2d 1156, 1165 (3d Cir. 1992) ("[T]he violation of the OSHA regulation was properly admissible as [some] evidence of [the defendant's] negligence . . . ."); Albrecht v. Baltimore & O. R.R., 808 F.2d 329, 333 (4th Cir. 1987) ("[A] better form . . . of the [jury] instruction would be to call to the attention of the jury the particular part of the applicable [OSHA] regulation and instruct it that if the jury believed from the evidence that the regulation had been violated, it might consider that as [some] evidence of negligence [in the FELA case].").*fn2

For all of these reasons, the Court rejects Defendants' argument that any discussion of OSHA regulations should be precluded as irrelevant under Fed. R. Evid. 401: rather, OSHA regulations are generally admissible as some evidence of the applicable standard of care.

2. Unfair Prejudice

Turning to the issue of unfair prejudice, the Federal Rules of Evidence provide that "[a]ll relevant evidence is admissible, except as otherwise provided by . . . these rules." Fed. R. Evid. 402. One of the rules that excludes relevant evidence under certain circumstances is Fed. R. Evid. 403, which provides as follows: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Fed. R. Evid. 403.

OSHA is a lengthy statute. 29 U.S.C. §§ 651-678. It does not, on its face, specifically govern the railroad industry. Id. Nor does it give rise to a private cause of action.*fn3 Plaintiff brought this action under FELA. (See Dkt. No. 24 ¶¶ 4, 6, 12(a) [Plf.'s Am. Compl., also relying, in minor way, on the Federal Safety Appliance Acts and the Boiler Inspection Acts]; see also Dkt. No. 34, Part 1, at 1 [Plf.'s Memo. of Law in Opp. to Defs.' Motion for Summary Judgment].) Under the circumstances, it is clear to the Court that an over-reliance on OSHA standards in this case would create a substantial danger of confusing or misleading the jury into believing that a violation of an OSHA regulation or standard, in and of itself, makes Defendants liable to Plaintiff. Cf. Minichello v. U.S. Indus., Inc., 756 F.2d 26, 29 (6th Cir. 1985) (noting that the introduction of OSHA standards in a products liability case can be problematic because the standards may improperly suggest a basis for liability).*fn4

It is presumably for this reason that federal courts that have admitted evidence of OSHA standards in FELA cases have been careful to delineate the bounds of that admissibility. See, e.g., Robertson v. Burlington N. R.R. Co., 32 F.3d 408, 410-11 (9th Cir. 1994) ("[E]vidence [of OSHA standards], however, is to be considered only in relation to all other evidence in the case, and a violation of an OSHA regulation is not negligence per se [in a FELA case]."); Ries v. National R.R. Passenger Corp., 960 F.2d 1156, 1164-65 (3d Cir. 1992) ("However, allowing the OSHA violation to constitute negligence per se and bar contributory negligence in a FELA suit would be contrary to both the FELA and OSHA."); Albrecht v. Baltimore & O. R.R., 808 F.2d 329, 332 (4th Cir. 1987) (explaining that "a better form of the . . . the [jury] instruction would [have been] to . . . instruct [the jury] that if [it] believed from the evidence that the [specific part of a particular OSHA] regulation had been violated, it might consider that as [only some] evidence of negligence [under FELA]. . . .").*fn5

For all these reasons, the Court concludes that Plaintiff may introduce evidence of OSHA regulations or standards as only some evidence of the applicable standard of care under FELA. More specifically, Plaintiff may introduce evidence of particular part of a specific OSHA regulation or standard as some evidence that Defendants had notice that specific ergonomic risk factors were closely associated with the development of cumulative trauma disorders to the upper extremity. (Dkt. No. 93, Part 3, at 1-2 [Plf.'s Opp. Memo. of Law].) In addition, Plaintiff may introduce evidence of any studies (if such studies exist) conducted by OSHA regarding (1) welding tasks, and the findings of those studies, and/or (2) cumulative trauma disorders to the upper extremity. (Dkt. No. 76, Part 2, at 8 [Report of Plf.'s Expert, Dr. Robert O. Andres, listing studies].)*fn6

However, Plaintiff may not introduce evidence of OSHA regulations or standards to show that (1) Defendants were bound by OSHA under the circumstances of this case, or (2) Defendants violated those OSHA regulations or standards. More specifically, Plaintiff may not, as he requests, introduce evidence of OSHA regulations or standards "outlin[ing] the ingredients of a good ergonomics program." (Id. at 1.) Such evidence would create a substantial danger of confusing or misleading the jury into believing that a violation of those OSHA regulations or standards constitutes a per se breach of Defendants' duty of care to Plaintiff under FELA. In addition, Plaintiff may not, as he requests, introduce evidence of OSHA regulations or standards governing "how companies should collect data on cumulative trauma disorder claims." (Id.) Such evidence would create a substantial danger of confusing or misleading the jury into believing that a violation of those OSHA regulations or standards constitutes a per se breach of Defendants' duty of care to Plaintiff under FELA. Finally, Plaintiff may not introduce evidence of OSHA regulations or standards for purpose other than the purpose specifically described in the preceding paragraph.

B. Remaining Portions of Defendants' "Omnibus Motion in Limine"

1. Purported Congressional Intent Behind Enactment of FELA

Defendants argue that it would be inappropriate for Plaintiff's counsel to discuss before the jury any purported "Congressional intent" regarding FELA. (Dkt. No. 73, Part 2, at 1-2.) In response, Plaintiff does not dispute that he may not discuss Congressional intent, but he argues that he must be able to "mention that FELA is a statute enacted by the United States Congress one hundred years ago specifically for railroad workers." (Dkt. No. 88) The Court finds that any minimal probative value of a discussion of FELA's Congressional intent is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, under Fed. R. Evid. 403. However, the Court also agrees with Plaintiff's counsel that mentioning the FELA statute, and briefly explaining who it applies to, is relevant and not unfairly prejudicial, confusing or misleading. For these reasons, the Court concludes that Plaintiff is precluded from discussing the Congressional intent of FELA, but is not precluded from briefly explaining to the jury that "FELA is a statute enacted by the United States Congress one hundred years ago specifically for railroad workers."

2. Fact that FELA Is Plaintiff's Sole Remedy

Defendants argue as follows: (1) any remark comparing the FELA to Workers' Compensation Acts, or the facts that Plaintiff was not covered under Workers' Compensation Benefits is impermissible; (2) no reference to lack of Workers' Compensation Benefits available to Plaintiff should be permitted in a FELA case; and (3) Plaintiff should be precluded from informing the jury that Plaintiff's sole remedy in the instant matter is under FELA. (Dkt. No. 73, Part 2, at 2-3.)

With regard to Defendants' first and second argument, Plaintiff acknowledges that it would be improper for him to introduce at trial any discussion, argument, testimony and/or evidence regarding a comparison between FELA and Workers' Compensation Acts, or the fact that Plaintiff was not covered under workers' compensation benefits. (Dkt. No. 88, Part 3, at 2.) "Where a properly filed motion is unopposed and the Court determines that the moving party has met its burden to demonstrate entitlement to the relief requested therein, the non-moving party's failure to file or serve any papers as required by this Rule shall be deemed as consent to the granting or denial of the motion, as the case may be, unless good cause be shown." N.D.N.Y. L.R. 7.1(b)(3). Therefore, under the circumstances, the sole issue before the Court is whether Defendants have met their burden to "demonstrate entitlement" to exclusion of the evidence in question.*fn7 An inquiry into whether a movant has met its "burden to demonstrate entitlement" to the relief requested under Local Rule 7.1(b)(3) is a more limited endeavor than a review of a contested motion.*fn8 This is because, as a practical matter, the burden requires only that the movant present an argument that is "facially meritorious."*fn9 Here, the Court finds that Defendants have met their lightened burden on their unopposed motion for the reasons stated in their motion papers. For these reasons, the Court concludes that Plaintiff is precluded from introducing any testimony or evidence (1) comparing the FELA to Workers' Compensation Acts, or the facts that Plaintiff was not covered under Workers' Compensation Benefits, or (2) suggesting that Workers' Compensation Benefits are not available to Plaintiff in the instant case.

With regard to Defendants' third argument (i.e., regarding the introduction of the fact that Plaintiff's sole remedy in the instant matter is under FELA), Plaintiff argues that he should be entitled to inform the jury of this because most jurors are unable to sue their employers, and therefore may not understand why Plaintiff is able to sue Defendants in this case. (Dkt. No. 88, Part 3, at 2.) While the Court agrees that some explanation to the jury regarding FELA is appropriate, the Court finds that allowing Plaintiff to inform the jury that FELA is his sole remedy is a round about way of telling the jury that Plaintiff is ineligible to receive worker's compensation.*fn10 In addition, for the same reason that it would be prejudicial to Plaintiff to allow Defendants to inform the jury about Railroad Retirement Board disability benefits, it would be prejudicial to allow Plaintiff to inform the jury that FELA is Plaintiff's sole remedy.*fn11 For these reasons, the Court concludes that Plaintiff is precluded from explaining to the jury that FELA is his sole remedy.

3. Existence of Other Claims or Suits Against Defendants

Defendants argue that evidence of other claims or lawsuits brought against Defendants is irrelevant under Fed. R. Evid. 401, and unfair prejudicial under Fed. R. Evid. 403. (Dkt. No. 73, ¶ J.) In his response, Plaintiff asserts that "testimony of similar prior lawsuits against Defendants is evidence of actual notice, which is highly relevant to the notice and foreseeability aspect of an FELA claim." (Dkt. No. 88, ¶ D.)

Generally, evidence of prior lawsuits or claims against Defendants is relevant in that it demonstrates that Defendants were on notice that exposing employees to certain conditions, appliances and/or work environments may cause injuries.*fn12 However, the Court finds that, in order to avoid unfairly prejudicing Defendants, and/or confusing or misleading the jury, the prior lawsuits or claims that Plaintiff seeks to introduce must be sufficiently similar to the claims that Plaintiff is bringing in the instant matter.

For these reasons, Plaintiff may only introduce prior claims or lawsuits brought against one or both of the Defendants by welders who suffered a cumulative trauma disorder to their upper extremity. In addition, to avoid unfair prejudice to Defendants, and confusing or misleading the jury, the Court will limit the number of such lawsuits or claims to three (3).

4. Whether Defendants Could Have Employed a Safer Method of Maintaining Plaintiff's Workplace

Defendants argue that, because their duty was to use reasonable care to ensure that the workplace and appliances were reasonably safe for the purpose and circumstances in which they are used, any inquiry as to whether they could have employed a safer method of maintaining the workplace is irrelevant under Fed. R. Evid. 401. (Dkt. No. 73, Part 2, at 11-13.) In a response that largely ignores Defendants' argument, Plaintiff argues that, through both Dr. Andres and various governmental publications, he plans to demonstrate Defendants' failure to implement a timely and adequate ergonomic program. (Dkt. No. 88, Part 3, at 3-4 [Plf.'s Opp. Memo. of Law].)*fn13

Under FELA, "[t]he extent of the employer's duty is to exercise ordinary care under the circumstances to see that the place in which the work is performed is reasonably safe . . . ." Wynne v. Consol. Rail Corp., 87-CV-8219, 1990 WL 1218, at *2 (S.D.N.Y. Jan. 2, 1990). The Court finds that Defendants do not have a duty under FELA to provide employees with the latest, best and safest appliances. However, since FELA requires that Plaintiff prove that Defendants' failed to provide him with a safe place to work, the issue of whether or not Defendants could have employed a safer method of maintaining the workplace could be relevant to the issue of reasonable care. See, e.g., Cook v. CSX Transp., Inc., 06-CV-1193, 2008 WL 2275544, at *3 (M.D. Fla. June 2, 2008) ("Evidence of safer alternative methods for performing Plaintiff's work could be relevant to the issue of reasonable care.") [citation omitted].*fn14

Having said that, Fed. R. Evid. 403 must be considered. Evidence that Defendants could have employed a safer method of maintaining Plaintiff's workplace carries an implication that Defendants were under a per se legal duty to Plaintiff under FELA to employ such a safer method. Such evidence also carries an implication that all such methods were reasonable or feasible--a fact that Dr. Andres did not establish to the Court's satisfaction in either his expert report or the Daubert hearing that occurred in this action on January 5, 2009. Finally, such evidence suggests that Defendants did not, in fact, employ a safer method of maintaining Plaintiff's particular workplace during the relevant time period--a fact of which Dr. Andres has no personal knowledge. As a result, the Court finds that such evidence carries a substantial danger of unfair prejudice to Defendants, confusion of the issues, and/or misleading the jury.

For all of these reasons, the Court concludes that Plaintiff may generally introduce evidence that Defendants could have employed a safer method of maintaining Plaintiff's workplace on two conditions: (1) that evidence does not imply that Defendants were under a per se legal duty to Plaintiff under FELA to employ such a safer method; and (2) if the evidence consists of the testimony of Dr. Andres, that evidence must comply with Part III of this Court's separate Decision and Order of January 6, 2009, regarding the admissibility of his expert testimony. For example, pursuant to that Decision and Order, it would be permissible for Dr. Andres to offer testimony consistent with the following (if appropriate): (1) "Generally, to mitigate the effects of certain ergonomic risk factors for the upper extremity to which welders are exposed, it is recommended by [state by whom (e.g., OSHA, the FRA, the AAR, and/or me in my expert opinion)] that a company take the following action: [describe action])"; and (2) "Based on the materials I have seen, it appears to me that, during the relevant time period, Defendants generally did not take such action in the following regard: [describe]."*fn15

C. Defendants' Motion to Exclude Evidence that They Lacked an Ergonomics Program and/or Medical Surveillance Program

In support of their third motion in limine, Defendants argue that, because Plaintiff's ergonomic expert is not a medical expert, he may not provide an opinion that Defendants lacked an ergonomic program and/or medical surveillance program, and that the lack of such a program caused Plaintiff's injuries. (Dkt. No. 75.) In addition, Defendants argue that none of Plaintiff's treating physicians have given opinions supporting the conclusion that Defendants lacked an ergonomic program and/or medical surveillance program, and that the lack of such a program caused Plaintiff's injuries. (Id. at Part 1, ¶ 3.) Finally, Defendants argue that whether or not they lacked an ergonomic and/or medical surveillance program is irrelevant, because there is no evidence that an ergonomic and/or medical surveillance program would have prevented Plaintiff's injuries. (Id. at Part 1, ¶ 3.) In response, Plaintiff argues that the "heart of Plaintiff's case" is that Defendants failed "to employ a timely and adequate ergonomic program to prevent repetitive stress injuries to the upper extremities," which Dr. Andres makes clear in his expert ergonomic report. (Dkt. No. 92, ¶ 1.)*fn16

Under the circumstances, it would appear that the sole relevance of an allegation or piece of evidence that Defendants lacked an ergonomic program and/or medical surveillance program depends on the introduction of evidence that, during or before the relevant time period, it was advisable that a company have such an ergonomics program and/or medical surveillance program in order to mitigate the effects of certain ergonomic risk factors for cumulative trauma disorders to the upper extremity. Absent the introduction of evidence that Defendants should have had such a program, evidence that Defendants lacked such a program is of little (if any) relevance, and has a strong potential to confuse and mislead the jury, for purposes of Fed. R. Evid. 403 (by encroaching on its role as the finder of whether Defendants breached their legal duty to Plaintiff). See Graham, 2008 WL 4418930, at *1 (linking the relevance of expert testimony regarding Defendant's failure to maintain an ergonomics program with evidence that Defendants should have had such a program).

For all of these reasons, the Court concludes that Plaintiff may generally introduce such evidence on two conditions: (1) the introduction of that evidence is preceded, or accompanied, by the introduction of evidence that, during or before the relevant time period, it was recommended that a company have such an ergonomics program and/or medical surveillance program in order to mitigate the effects of certain ergonomic risk factors for cumulative trauma disorders to the upper extremity; and (2) if the evidence consists of the testimony of Dr. Andres, that evidence must comply with Part III of this Court's separate Decision and Order of January 6, 2009, regarding the admissibility of his expert testimony. For example, pursuant that Decision and Order, it would be permissible for Dr. Andres to offer testimony consistent with the following (if appropriate): (1) "Generally, to prevent cumulative trauma disorders to the upper extremity, it is recommended by [state by whom (e.g., OSHA, the FRA, the AAR, and/or me in my expert opinion)] that a company have the following ergonomics program or medical management program: [describe]"; and (2) "Based on the materials I have seen, it appears to me that, during the relevant time period, Defendants generally did not have such a program in the following regard: [describe]."

ACCORDINGLY, it is

ORDERED that Defendants' motion to exclude evidence regarding OSHA standards or alleged violations of OSHA standards (Dkt. No. 71) is GRANTED in part and DENIED in part, in that (1) Plaintiff may introduce evidence of particular part of a specific OSHA regulation or standard as some evidence that Defendants had notice that specific ergonomic risk factors were closely associated with the development of cumulative trauma disorders to the upper extremity, (2) Plaintiff may introduce evidence of any studies (if such studies exist) conducted by OSHA regarding (a) welding tasks, and the findings of those studies, and/or (b) cumulative trauma disorders to the upper extremity, (3) if Plaintiff can introduce evidence of such a study, he may introduce evidence of the RULA screening method promoted by OSHA, if that screening method was used in the study, and (4) Plaintiff may not introduce evidence of OSHA regulations or standards for any other purpose; and it is further

ORDERED that Defendants' motion to preclude Plaintiff from introducing at trial any discussion, argument, testimony and/or evidence regarding any purported Congressional intent behind the enactment of FELA (Dkt. No.73, Part 2, at 1-2) is GRANTED in part and DENIED in part, in that Plaintiff is precluded from discussing Congressional intent, but is not precluded from briefly explaining to the jury in Counsel's opening statement that FELA is a statute enacted by the United States Congress one hundred years ago specifically for railroad workers; and it is further

ORDERED that Defendants' motion to preclude Plaintiff from introducing at trial any discussion, argument, testimony and/or evidence regarding a comparison between FELA and any workers' compensation acts, the fact that Plaintiff was not covered under workers' compensation benefits, or the fact that Plaintiff's sole remedy is under FELA (Dkt. No. 73, Part 2, at 2-4) is GRANTED; and it is further

ORDERED that Defendants' motion to preclude Plaintiff from introducing at trial any discussion, argument, testimony and/or evidence regarding any other claims or lawsuits against Defendants (Dkt. No. 73, Part 2, at 10-11) is GRANTED in part and DENIED in part, in that (1) Plaintiff may only introduce prior claims or lawsuits brought against one or both of the Defendants by welders who suffered a cumulative trauma disorder to their upper extremity, and (2) the number of such lawsuits or claims is limited to three (3); and it is further ORDERED that Defendants' motion to preclude Plaintiff from introducing at trial any discussion, argument, testimony and/or evidence regarding whether Defendants could have employed a safer method of maintaining Plaintiff's workplace (Dkt. No. 73, Part 2, at 11-13) is GRANTED in part and DENIED in part, as described above in Part II.B.4. of this Decision and Order; and it is further

ORDERED that Defendants' motion to preclude Plaintiff from introducing evidence that Defendants lacked an ergonomic program and/or medical surveillance program (Dkt. No. 75) is GRANTED in part and DENIED in part, as described above in Part III of this Decision and Order.


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